Ms Y and Health Service Executive

Whether the HSE was justified in refusing access to records relating to the applicant’s late aunt’s time at a named psychiatric hospital under section 35 and section 37 of the FOI Act

14 May 2020

Background

In Case OIC-53567-Y9S9D2, I reviewed a decision of the HSE to refuse the applicant’s request for all records relating to her late aunt’s time at a named psychiatric hospital under sections 11(4) and 37(1) of the FOI Act. In a decision which issued on 26 August 2019, I concluded that the HSE had failed to consider the applicability of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 in the case. I annulled the HSE's decision and directed it to undertake a fresh decision-making process, having due regard to section 37(8) of the Act and the provisions of the 2016 Regulations.

On 11 October 2019 the HSE issued a fresh decision wherein it accepted that applicant satisfied the definition of next of kin as listed in Regulation 8(d). It granted partial access to the non-clinical file relating to the applicant’s aunt, with the redaction/withholding of information relating to the applicant’s aunt and to other parties. It refused access to the clinical file under section 37(1) of the Act.

The applicant sought an internal review of that decision on 22 October 2019, following which the HSE affirmed its original decision. However, it provided a certain amount of information regarding the applicant’s late aunt having regard to the details of the applicant’s request for internal review.

On 29 January 2020, this Office received an application from the applicant for a review of the HSE’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the HSE and the applicant outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the content of the records at issue.

Scope of Review

In its submission to this Office, the HSE said it refused access to the information at issue under sections 35 and 37 of the Act. Accordingly, this review is concerned solely with the question of whether the HSE was justified in refusing to grant the applicant access to the remaining records relating to her late aunt’s time at a named psychiatric hospital under section 35 and section 37 of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to explain that section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of exempt information. As a consequence, the descriptions I can give of the HSE’s arguments for refusing certain information and of my findings in relation to those arguments are necessarily limited in this case.

Analysis and Findings

Having regard to the nature of the information at issue in this case, it appears to me that section 37 is of most relevance in this case. Accordingly, I will consider the applicability of section 37 in the first instance.

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to deceased individuals.

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including information relating to the medical and psychiatric history of the individual.

The records at issue in this case comprise clinical and non-clinical records relating to the deceased aunt of the applicant in the course of her care at a named psychiatric hospital. Having examined the records at issue, I am satisfied that they comprise personal information relating to the applicant's aunt. I find, therefore, that section 37(1) applies. I am also satisfied that the information redacted from one of the records on the non-clinical file is personal information relating to the third party concerned and that section 37(1) applies to that information.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the of the information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the applicant’s late aunt or the third party whose information was redacted from the non-clinical file, I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (the Rotunda case). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. However, the Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The information at issue in this case is of an inherently private nature. Furthermore, I am cognisant of the fact that the release of a record under FOI effectively, or at least potentially, amounts to the disclosure of the record to the world at large as the Act places no constraints on the uses to which such records may be put. In the circumstances, I am satisfied that the public interest in granting access to the information sought does not, on balance, outweigh the significant public interest in protecting the privacy rights of the applicant’s late aunt or the relevant third party. I find therefore, that section 37(5)(a) does not apply.

Section 37(8)

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (the Regulations).

The Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one of a number of classes, including the following:

"... the requester is the spouse or next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request".

As I have indicated above the HSE accepts that the applicant is the next of kin in this case. The question I must consider, therefore, is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

In May 2017, pursuant to section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform published revised guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

the confidentiality of personal information as set out in section 37(1)

whether the deceased would have consented to the release of the records to the requester when living

whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records

whether release would damage the good name and character of the deceased

the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death

the nature of the records to be released

whether the requester can obtain the information they seek without accessing the records of the deceased

any other relevant circumstances that the requester may set out.

Furthermore, in considering the nature and confidentiality of records to be released, the guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical HSE guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016 (the Medical HSE Guide)). The Medical HSE Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.

It is plain from the Regulations, which refer to “all the circumstances” and from the factors specified in the guidance published by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.

In its submission to this Office, the HSE confirmed that it considered the applicant’s request in accordance with the relevant Regulations and guidance. While I am cognisant of the requirements of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of exempt information, I can say that the HSE stated that it took the following into consideration in its decision to refuse the records at issue:

the confidentiality of personal information withheld

whether the deceased would have consented to the release of the information to the requester when living

whether the deceased outlined in writing her consent to release of personal records

whether release would damage the good name and character of the deceased

the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death

the nature of the information to be released

whether the requester can obtain the information they seek without accessing the records of the deceased

In her application for review, the applicant made a number of arguments as to why the records in this case ought to be released. She stated that nothing in the records could damage her aunt’s good name or character or lessen her dignity in the eyes of her family. The applicant also suggested that her late aunt may have a son and that the information in the records may lead to his discovery.

It is the HSE’s position that the information at issue is particularly sensitive and its release would damage the good name and character of the deceased in circumstances where release of a record under FOI is, in effect, regarded as release to the world at large. The HSE also provided its view that release of the records concerned would not assist or provide any information that the applicant may think would assist in tracing any potential relatives of the applicant’s aunt.

Having reviewed the withheld records, I agree with the views of the HSE. I consider the withheld records in this case to be of a particularly sensitive nature. Having carefully considered the provisions of the Regulations, the factors identified in the guidance, the submissions from both the applicant and the HSE, and the nature of the records, I am satisfied that in all the circumstances of this particular case, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing access to the information at issue.

In conclusion, therefore, I find that the HSE was justified in refusing access to the records requested under section 37 of the FOI Act. Having found section 37 to apply, I do not consider it necessary to consider section 35 in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant’s request for records relating to her late aunt’s time at a named psychiatric hospital under section 37 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.